The government is under pressure to significantly modify aspects of its first set of national security reforms after bureaucrats and intelligence officials failed to allay concerns from both major parties.

Particularly problematic are two areas: the nebulous new concept of “ASIO affiliates” and the proposal for “special intelligence operations”, which has been strongly criticised by media outlets.

The initial hearing of the Joint Committee on Intelligence and Security into the National Security Legislation Amendment Bill, the first of an intended three bills to update and expand the powers of intelligence and law enforcement agencies, was held last Friday with outgoing Australian Security Intelligence Organisation head David Irvine and officials from the Attorney-General’s Department, although retiring AGD secretary Roger Wilkins did not attend. The Inspector-General of Intelligence and Security, Vivienne Thom, also gave evidence.

Thom and a number of privacy organisations raised concerns about the broad nature of the new concept of “ASIO affiliate”, which would enable non-ASIO officials, including foreign intelligence services, to perform a range of ASIO functions, including surveillance and obtaining data on Australians. The issue prompted extended discussion with ASIO and AGD officials, with the senior AGD official present, a very nervous acting division head, clearly failing to address the issue raised about the open-ended and broad-brush nature of the change.

Significantly, South Australian Liberal Senator David Fawcett proposed that there be a separation between “the fact that you are trying to have an overarching term for the various ways in which people relate to ASIO, whether as an employee, secondee, contractor etc, versus a linkage to the exercise of ASIO powers, such that you said ‘duly authorised persons’.” At that point, the more experienced Irvine intervened to complain (improbably) that that risked “developing a whole new realm of bureaucracy that would require us to have all sorts of graduated forms of authorisation.” Fawcett’s proposal was tabled for a private discussion between Irvine and the committee, signalling it is likely to be seriously considered as a recommendation in the committee report.

The draconian provisions proposed for “special intelligence operations”, which were attacked in a joint media submission as curtailing free speech and likely to have a chilling effect on journalism, were also extensively covered, mainly by new committee member Penny Wong. Much of the discussion, and subsequent media coverage, revolved around what the word “reckless” meant after officials sought to argue that journalists could only be prosecuted for revealing information about a covert operation if they behaved “recklessly” and that this was a high hurdle for prosecutors. As Wong teased out, however, this could include actions even if a journalist wasn’t aware that a matter was covered by an SIO. Wong also pursued the fact that the proposed ASIO scheme differs significantly from the Australian Federal Police scheme on which it is modelled in terms of authorisation and reporting requirements, despite officials’ assurances that the schemes were analogous. Fawcett unsuccessfully put hypotheticals to the officials in an effort to get a clearer explanation of the word.

“A key problem in the constant push by security agencies for ever greater powers is that, under current oversight arrangements, citizens effectively are required to trust that those powers will never be abused.”

But the most significant intervention on the SIO issue came from deputy chair and former committee head Anthony Byrne on Monday, while hearing evidence from the Law Council. Under the SIO proposal in the bill, covert operations could be authorised merely by the head of ASIO. Byrne invited comment on the suggestion that SIOs, as with the harsh preventative detention and control order provisions elsewhere in counter-terrorism laws, require an external “issuing authority” — either a judge or specialist legal figure external to the agency — to approve it.

The proposal is nuanced but critically important: it would subject ASIO to external oversight in establishing SIOs that could see journalists jailed even for inadvertently revealing information. And once a basic requirement to get a warrant is established for the additional powers being sought by ASIO, there is no rationale for refusing to make getting a warrant, or some other form of external oversight, core to all of the additional powers being sought.

This has particular relevance for the issue of data retention, with many critics saying agencies should be required to get a warrant if they want to access telecommunications information. Agencies have already launched a pre-emptive strike against the idea, with Irvine insisting two weeks ago that their operations would “grind to a halt” if they were required to obtain a warrant every time they asked a telco for metadata — which gives an indication of the truly extraordinary scale of metadata acquisition currently occurring in Australia. Agencies have also employed this line to Greens Senator Scott Ludlam’s inquiry into telecommunications interception, which will be reporting soon.

But apart from the threat of additional paperwork that Irvine appears to like invoking, no coherent reason why warrants should not be required has been advanced by opponents. There’s an even more nuanced debate to be had here: if not warrants for every metadata request, how about warrants for the sort of data agencies didn’t have access to until recently — the geographical information provided by your mobile phone, for example? The IP address of your computer?

But the broader point is this: a key problem in the constant push by security agencies for ever greater powers is that, under current oversight arrangements, citizens effectively are required to trust that those powers will never be abused. Unlike public sector agencies with far smaller budgets and far fewer powers to harm individuals, there is minimal public oversight of an agency like ASIO, and none of external agencies like ASIS or Australian Signals Directorate. The new powers proposed, like that to establish SIOs, continue this tradition.

But the business-as-usual trust model is no longer good enough, not when agencies want ever more intrusive powers and access to ever more surveillance capacity over individuals. The National Security Agency experience from the US shows that such powers will be abused in the absence of public oversight. If ASIO et al want more powers, they must accept greater scrutiny.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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